Lance v Lance

[2014] NZHC 2846

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV-2014-483-41 [2014] NZHC 2846

UNDER	THE TRUSTEE ACT 1956
IN THE MATTER OF	The Lance Trust
BETWEEN	DIANNE JOAN LANCE Applicant
AND	GRAHAME HUBERT LANCE Defendant

Hearing:	On the papers
Counsel:	G F Kelly for the Applicant
Judgment:	14 November 2014

JUDGMENT OF MACKENZIE J

I direct that the delivery time of this judgment is

4.30 pm on the 14th day of November 2014.

Solicitors:           Grey Kelly Law, Wellington, Applicant

LANCE v LANCE [2014] NZHC 2846 [14 November 2014]

[1]      In my judgment of 3 November 2014, I invited counsel for the applicant to submit a memorandum addressing the need for the application for the relief sought in paragraph (b) of the statement of claim, ordering that the powers of appointment, removal and replacement of trustees, presently contained in paragraph 10 of the Trust Deed, be vested in the trustees from time to time of the Trust.1   I sought further elaboration from counsel about the need for such variation, having regard to the powers in s 43 of the Trustee Act 1956.

[2]      Mr Kelly for the applicant has filed a helpful memorandum.  He explains that the application has been sought because it is considered that the powers in s 43 may not be adequate to address the long term administration of the Trust.  The long term disability of the settlor means that the powers in cl 10 are not likely to be available during his lifetime.  The power in s 43 is more limited than the power in cl 10 of the Trust Deed.

[3]      With Mr Kelly’s explanation, I consider that it is appropriate to vary the power of appointment during the lifetime of the settlor, Mr Lance.   However, as Mr Kelly’s  memorandum  rightly  recognises,  my  reservations  about  granting  the order related principally to the change which the proposed order would make to the power of appointment following Mr Lance’s death.   That power, under cl 10, is vested in Mr Lance’s personal representative.   Mr Kelly’s memorandum suggests that the practical implications of the change may not be significant.   However, he suggests as an alternative that the Court might limit the variation of the powers in cl 10 to the lifetime of the settlor only.

[4]      In the circumstances, I consider that is the better course.  I make an order in terms of paragraph (b) of the prayer for relief, amended by adding, after the words “[o]rders that”, the words “during the lifetime of Grahame Hubert Lance”.

“A D MacKenzie J”

1      Lance v Lance [2014] NZHC 2725.